Texas Register September 9, 2022 Volume: 47 Number: 36

Texas Register Table of Contents

1 Governor
- - 1.0.1 Appointments Re:
    - 1.0.1.1 The Governor appointed three individuals to the Texas Medical Board District Four Review Committee.
2 Texas Health and Human Services Commission
3 Texas Medical Board
- - 3.0.1 Proposed Rules Re:
    - 3.0.1.1 Repealing 22 TAC §§195.1 – 195.4, concerning pain management clinics.
    - 3.0.1.2 New 22 TAC §§195.1 – 195.5, concerning increased patient safety and access to legitimate chronic pain treatment.
4 Texas State Board of Pharmacy
- - 4.0.1 Proposed Rules Re:
5 Texas Board of Physical Therapy Examiners
- - 5.0.1 Proposed Rules Re:
    - 5.0.1.1 Amending 22 TAC §337.2, regarding changing the board’s address on consumer informational signs.
6 Texas Board of Occupational Therapy Examiners
- - 6.0.1 Proposed Rules Re:
7 Department of State Health Services
- - 7.0.1 Adopted Rules Re:
    - 7.0.1.1 Amending 25 TAC §157.11, to require that each applicable EMS medical director approve protocols that give preference to the emergency transfer of a dialysis patient from the patient’s location directly to an outpatient end-stage renal disease facility during a declared disaster.

Governor

Appointments Re:

The Governor appointed three individuals to the Texas Medical Board District Four Review Committee.

Appointments for August 30, 2022

Appointed to the Texas Medical Board District Four Review Committee for a term to expire January 15, 2024:

Shirlene J. Samuel, D.O., of Austin, Texas (replacing John R. Guerra, D.O. of Mission, whose term expired).

Appointed to the Texas Medical Board District Four Review Committee for a term to expire January 15, 2028:

Walton “Boyd” Bush, Jr., Ed.D, of Bee Cave, Texas (Dr. Bush is being reappointed).
Bobby W. Marek, M.D., of Brenham, Texas (replacing Ada L. Booth. M.D., whose term expired).

Texas Health and Human Services Commission

Proposed Rules Re:

Amending 1 TAC §355.105, to allow for preliminary rate setting before a public hearing for non-discretionary items.

CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER A. COST DETERMINATION PROCESS
1 TAC §355.105

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.105, concerning General Reporting and Documentation Requirements, Methods, and Procedures.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update language in §355.105 to allow for preliminary rate setting prior to a public hearing for non-discretionary items (e.g., Health Care Common Procedure Coding System (HCPCS) Updates, Indian Health Services (HIS), and the Medical Transportation Program (MTP)). These non-discretionary rates are published in the Federal Register or by the Texas Comptroller either on January 1 of each year or as deemed appropriate by the regulating entity. This rule amendment also corrects references to the HHSC Rate Analysis Department, now known as the HHSC Provider Finance Department.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §355.105 deletes references to “Rate Analysis” throughout the rule and replaces it with the current department name “Provider Finance.”
The proposed amendment to §355.105 removes references to Department of Aging and Disability Services (DADS).
The proposed amendment to §355.105(b)(2)(A)(i) updates a reference to a repealed rule with the current rule regarding record retention and disposition.
The proposed amendment to §355.105(g)(1) adds subpararaphs (A) and (B) which defines preliminary rates and describes services for which these rates apply and the duration of the time period the rates will be effective.

Amending 26 TAC §§87.101, 87.103, 87.105, 87.107, 87.111, 87.113, 87.117, 87.119, concerning consumer complaints and contact methods for the Office of the Ombudsman (OO).

CHAPTER 87. OMBUDSMAN SERVICES
SUBCHAPTER A. OFFICE OF THE OMBUDSMAN
26 TAC §§87.101, 87.103, 87.105, 87.107, 87.111, 87.113, 87.117, 87.119

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to 26 Texas Administrative Code Chapter 87, by amending §§87.101, 87.103, 87.105, 87.107, 87.111, 87.113, 87.117, 87.119, 87.205, 87.207, 87.211, 87.213, 87.215, 87.217, 87.301, 87.311, 87.319, 87.401, 87.403, 87.405, 87.407, 87.409, 87.411, 87.413, 87.415, 87.417, and 87.419; and adding new Subchapter E, concerning the Intellectual or Developmental Disability Ombudsman, consisting of §§87.501, 87.503, 87.505, 87.507, 87.509, 87.511, 87.513, 87.515, 87.517, and 87.519.

BACKGROUND AND PURPOSE

The purpose of the proposal is to reflect operational procedures that have been modified by the Health and Human Services (HHS) Office of the Ombudsman (OO) since the chapter was adopted in January 2019. The amendments add a new subsection detailing how OO may structure communication with consumers if a consumer’s or the consumer’s legally authorized representative’s conduct hinders the effective investigation and resolution of a case. The amendments also replace a repealed reporting requirement with Texas Insurance Code §1355.2572(b), as added by House Bill 2595, 87th Legislature, Regular Session, 2021, which requires the Texas Department of Insurance to collaborate with the Ombudsman for Behavioral Health (OBH) on an annual report related to behavioral health parity. The amendments also add a new subchapter to outline how the Intellectual or Developmental Disability Ombudsman (IDDO), transferred to OO in January 2019, assists individuals with an intellectual or developmental disability (IDD) with inquiries and complaints.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §87.101, Definitions, adds definitions for IDD, and local intellectual and developmental disability authority (LIDDA). The proposed amendment also adds the acronym to the definition of legally authorized representative (LAR).
The proposed amendment to §87.103, Creation of the Office and Populations Served, adds a description of IDDO. The proposed amendment also clarifies that Chapter 87 does not apply to the State Long-term Care Ombudsman program and corrects an error in a reference to Subchapter D, Ombudsman for Behavioral Health.
The proposed amendment to §87.105, Contact Information, adds contact information for IDDO.
The proposed amendment to §87.107, Confidentiality, removes a reference to the Texas Works Handbook, which is no longer used by OO staff to verify a consumer’s identity.
The proposed amendment to §87.111, Referrals to Other HHS offices or Other Entities, adds the acronym LAR for the term legally authorized representative, as this acronym is defined in §87.101.
The proposed amendment to §87.113, Intake of Contacts, clarifies that online submissions are immediately loaded into the HEART tracking system. The proposed amendment adds a subsection noting OO publishes a list of commitments on its website to ensure cases are dealt with fairly, efficiently, and effectively.
The proposed amendment to §87.117, Follow-up with Consumers, adds subsections outlining the process OO staff may follow to establish a more structured communication plan for a case to clarify a consumer will never be left without a way to contact OO staff.
The proposed amendment to §87.119, Substantiating and Closing Complaints, adds the acronym LAR for the term legally authorized representative.

Amending 26 TAC §§87.205, 87.207, 87.211, 87.213, 87.215, 87.217, to add the acronym LAR for the term legally authorized representative.

CHAPTER 87. OMBUDSMAN SERVICES
SUBCHAPTER B. OMBUDSMAN MANAGED CARE ASSISTANCE
26 TAC §§87.205, 87.207, 87.211, 87.213, 87.215, 87.217

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §87.205, Contact Information, adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.207, Confidentiality, removes a reference to the Texas Works Handbook, which is no longer used by OO staff to verify a consumer’s identity.
The proposed amendment to §87.211, Referrals to Other HHS Offices or Other Entities, clarifies that in accordance with federal regulations, Ombudsman Managed Care Assistance Team (OMCAT) staff refer consumers to their managed care organization (MCO) if they wish to submit a request for an HHSC fair hearing. The proposed amendment adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.213, Intake of Contacts, adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.215, Research and Communication with HHS Programs, Health Care Providers, and Medicaid Managed Care Organizations, clarifies that OMCAT staff seek assistance from HHSC Medicaid staff on complaints that raise questions about policy or MCO contract compliance.
The proposed amendment to §87.217, Follow-up with Consumers, adds the acronym LAR for the term legally authorized representative.

Amending 26 TAC §§87.301, 87.311, 87.319, concerning updates and exceptions for Foster Care Ombudsman (FCO).

CHAPTER 87. OMBUDSMAN SERVICES
SUBCHAPTER C. OMBUDSMAN FOR CHILDREN AND YOUTH IN FOSTER CARE
26 TAC §§87.301, 87.311, 87.319

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §87.301, Definitions, updates the name of the Department of Family and Protective Services Office of Internal Affairs.
The proposed amendment to §87.311, Referrals of Other HHS Offices or Other Entities, adds an exception that allows Foster Care Ombudsman (FCO) staff to investigate cases from the court-appointed attorney of a foster youth who cannot verbalize the youth’s own concern, either due to age or IDD.
The proposed amendment to §87.319, Substantiating and Closing Complaints, corrects an error by replacing substantiate with substantiated.

Amending 26 TAC §§87.401, 87.403, 87.405, 87.407, 87.409, 87.411, 87.413, 87.415, 87.417, 87.419, to update definitions and acronyms relating to ombudsman behavioral health services.

CHAPTER 87. OMBUDSMAN SERVICES
SUBCHAPTER D. OMBUDSMAN FOR BEHAVIORAL HEALTH
26 TAC §§87.401, 87.403, 87.405, 87.407, 87.409, 87.411, 87.413, 87.415, 87.417, 87.419

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

The proposed amendment to §87.401, Definitions, adds a definition for the HHSC Adult Mental Health (AMH) program.
The proposed amendment to §87.403, Creation of the Program and Populations Served, clarifies that consumers receiving services through the AMH program are served by the Ombudsman for Behavioral Health (OBH).
The proposed amendment to §87.405, Contact Information, corrects the reference to the admission screening process, and adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.407, Confidentiality, adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.409, Data and Reports, replaces a repealed reporting requirement with Texas Insurance Code §1355.2572(b), as added by House Bill 2595, 87th Legislature, Regular Session, 2021, which requires the Texas Department of Insurance to collaborate with OBH on an annual report related to behavioral health parity. It also includes the Clinical Workstation (CWS) system to the list of systems OBH staff access.
The proposed amendment to §87.411, Referrals to Other HHS Offices or Other Entities, updates a reference to IDDO, which was previously part of the HHSC Regulatory Services Division. The proposed amendment updates the acronym HIPAA with the term it defines, the Health Insurance Portability and Accountability Act, and adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.413, Intake of Contacts, updates the requirement for OBH cases to be entered into HEART to one business day, to be in accordance with related language for other OO teams. The proposed amendment also adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.415, Research and Communication with HHS Programs and Agencies that Regulate Health Plans, clarifies that OBH staff work with designated staff within the AMH program on related cases. The proposed amendment also adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.417, Follow-up with Consumers, adds the acronym LAR for the term legally authorized representative.
The proposed amendment to §87.419, Substantiating and Closing Complaints, adds the acronym LAR for the term legally authorized representative.

Amending 26 TAC §§87.501, 87.503, 87.505, 87.507, 87.509, 87.511, 87.513, 87.515, 87.517, 87.519, to outline the responsibilities and goals for Intellectual or Developmental Disability Ombudsman (IDDO).

CHAPTER 87. OMBUDSMAN SERVICES
SUBCHAPTER E. INTELLECTUAL OR DEVELOPMENTAL DISABILITY OMBUDSMAN
26 TAC §§87.501, 87.503, 87.505, 87.507, 87.509, 87.511, 87.513, 87.515, 87.517, 87.519

OVERVIEW

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Proposed new §87.501, Definitions, clarifies words and terms used throughout the new Subchapter E, related to IDDO.
Proposed new §87.503, Creation of the Program and Populations Served, outlines IDDO’s statutory authority and responsibility.
Proposed new §87.505, Contact Information, sets out IDDO contact information.
Proposed new §87.507, Confidentiality, outlines how IDDO staff protect the confidential information of individuals with IDD.
Proposed new §87.509, Data and Reports, notes IDDO’s access to key information systems maintained by HHSC and Department of Family and Protective Services (DFPS).
Proposed new §87.511, Referrals to Other HHS Offices or Other Entities, outlines the various referrals IDDO staff may make to other HHS offices or other entities, depending on the subject of the contact.
Proposed new §87.513, Intake of Contacts, outlines actions taken by IDDO staff when a contact is first received.
Proposed new §87.515, Research and Communication with HHS Programs, outlines how IDDO staff research a contact before referring to HHS program staff, program providers, or LIDDA rights protection officers. The proposed new section indicates that IDDO staff review complaints to determine if policy was followed by HHS staff and vendors contracted to provide services, including LIDDAs, and sets out timelines and processes for IDDO review of program responses.
Proposed new §87.517, Follow-up with Individuals with IDD, sets out the time frame for IDDO staff responses to individuals with IDD.
Proposed new §87.519, Substantiating and Closing Complaints, notes that IDDO staff determine if a complaint is substantiated before closing it. The proposed new section outlines timeline goals for resolution of complaints and what a written response to a consumer includes.

New 26 TAC §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, concerning the process of administrative reviews.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
26 TAC §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 26, Texas Administrative Code, Chapter 745, new Subchapter M, Administrative Reviews and Due Process Hearings, which consists of new §§745.8801, 745.8803, 745.8805, 745.8807, 745.8809, 745.8811, 745.8813, 745.8815, 745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, 745.8871, 745.8873, 745.8875, 745.8877, 745.8879, and 745.8881.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement House Bill (H.B.) 5, 85th Legislature, Regular Session, 2017, directing the Texas Department of Family and Protective Services (DFPS) to become a stand-alone agency that is separate from the Texas Health and Human Services Commission (HHSC) system. H.B. 5 moved the regulation of child care from DFPS to HHSC, with only the responsibility for investigating allegations of child abuse, neglect, and exploitation in child care operations remaining at DFPS.

Since HHSC Child Care Regulation (CCR) is responsible for the administrative rules in Texas Administrative Code, Title 40, Chapter 745, Licensing, that impact child care operations, these rules must be transferred from DFPS to HHSC. CCR already administratively transferred all the rules in Title 40, Chapter 745 to Title 26, Chapter 745, except for Subchapters K and M. Those subchapters could not be administratively transferred because some of the rules also apply to responsibilities that remained with DFPS.

SECTION-BY-SECTION SUMMARY

Proposed new §745.8801 describes an administrative review. The proposed rule has content from repealed §745.8801 and §745.8803 in Title 40, Chapter 745, Subchapter M. The statement that CCR may not implement any decision or action that is the subject of the review until the due process rights concerning the decision or action are waived or exhausted was deleted from the proposed rule because it is not necessary.
Proposed new §745.8803 describes who may request an administrative review. The proposed rule and chart have content from repealed §745.8805 and §745.8807 in Title 40, Chapter 745, Subchapter M. However, changes to the content were made to: (1) clarify that an operation may request an administrative review when CCR adds a condition to a corrective action plan for a probation that the operation is currently on; (2) delete the right to request an administrative review (A) when the person is designated as a perpetrator of abuse, neglect, or exploitation because those designations are now done by DFPS and any administrative review would be conducted by DFPS; and (B) when CCR determines an operation poses an immediate threat or danger to the health or safety of children because the operation, via HRC §42.072(e), must seek injunctive relief in district court to operate in this scenario pending the administrative review; and (3) clarify a person will only be able to request an administrative review related to a determination that the person poses an immediate threat or danger to the health or safety of children if the determination is based on a juvenile adjudication or another issue unrelated to criminal history or a DFPS child abuse, neglect, or exploitation investigation. If the determination is related to a criminal arrest or charge, the determination is temporary pending the final outcome of the alleged crime; therefore, CCR will make a new determination once there is a final outcome. If the determination is related to an open DFPS child abuse, neglect, or exploitation investigation, CCR will reevaluate the determination at the close of the investigation, and the person may request an administrative review from DFPS if the investigation results in DFPS making a finding of child abuse, neglect, or exploitation.
Proposed new §745.8805 describes how a person requests an administrative review. The proposed rule has content from a portion of repealed §745.8806 and §745.8809 in Title 40, Chapter 745, Subchapter M. In addition, a clarification has been added to the proposed rule explaining how to determine if a request for an administrative review is timely.
Proposed new §745.8807 describes how a person waives the right to an administrative review. The proposed rule has content from a portion of repealed §745.8806 and §745.8817 in Title 40, Chapter 745, Subchapter M.
Proposed new §745.8809 describes who conducts an administrative review. The proposed rule is a substantial change from repealed §745.8813 in Title 40, Chapter 745, Subchapter M, because the Child Care Enforcement department of HHSC will be conducting all administrative reviews. In addition, it clarifies that the person conducting the administrative review must not have directly supervised the person making the decision or action or conducting the inspection or investigation that is being reviewed or otherwise been involved in the original decision, action, inspection, or investigation.
Proposed new §745.8811 describes how an administrative review is conducted. The proposed rule has content from repealed §745.8815 in Title 40, Chapter 745, Subchapter M, with updates to improve readability and understanding. There is also a new definition for “good cause” and a clarification that when an operation has been cited for abuse, neglect, or exploitation, an administrative review for a deficiency related to the abuse, neglect, or exploitation will be postponed pending the administrative review before DFPS.
Proposed new §745.8813 describes what actions a person conducting an administrative review may take at the end of the review, including upholding, overturning, or altering the decision or action. The proposed rule also describes how the person alters a decision or action. For example, the person may determine a more appropriate minimum standard addresses the relevant issue.
Proposed new §745.8815 lists the time frames for when a person must issue an administrative review decision. The proposed rule updates the content from repealed §745.8815(f) in Title 40, Chapter 745, Subchapter M by (1) adding a longer time frame (60 days versus 21 days) when there has not been a conference or meeting; and (2) citing the definition for good cause.

New 26 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, regarding the process and composition of due process hearings.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
26 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.8831 describes what a due process hearing is. The proposed rule has content from repealed §745.8831 in Title 40, Chapter 745, Subchapter M.
Proposed new §745.8833 defines “Legal Enforcement Department.”
Proposed new §745.8835 describes who may request a due process hearing. The proposed rule and chart have content from repealed §745.8835 and §745.8837 in Title 40, Chapter 745, Subchapter M. In addition, the right to request a due process hearing was deleted for a CCR determination that an operation poses an immediate threat or danger to the health or safety of children because the operation, via HRC §42.072(e), must seek injunctive relief in district court to operate in this scenario pending the due process hearing. Moreover, a person will only be able to request a due process hearing related to a determination that the person poses an immediate threat or danger to the health or safety of children if the determination is based on a juvenile adjudication or another issue unrelated to criminal history or a DFPS child abuse, neglect, or exploitation investigation. If the determination is related to a criminal arrest or charge, the determination is temporary pending the final outcome of the alleged crime; therefore, CCR will make a new determination once there is a final outcome. If the determination is related to an open DFPS child abuse, neglect, or exploitation investigation, CCR will reevaluate the determination at the close of the investigation, and the person may request a due process hearing to dispute a DFPS finding of child abuse, neglect, or exploitation that has not been sustained.
Proposed new §745.8837 describes how a person requests a due process hearing. The proposed rule has content from repealed §745.8839 and §745.8841 in Title 40, Chapter 745, Subchapter M. In addition, there is a clarification explaining how to determine if a request for a due process hearing is timely.
Proposed new §745.8839 describes the process for scheduling a due process hearing and sending notice to the requestor. The proposed rule has content from repealed §745.8843(a) and (b) in Title 40, Chapter 745, Subchapter M, with minor updates to improve readability and understanding.
Proposed new §745.8841 describes what happens if a requestor’s address changes after the initial request for a hearing. The proposed rule has content from repealed §745.8843(c) in Title 40, Chapter 745, Subchapter M, with additional information that the last address that the requestor provided to the Docket Clerk will remain the address of record if the requestor fails to notify the Docket Clerk of a change in address.
Proposed new §745.8843 describes when the Legal Enforcement Department may nullify a request for a hearing. The proposed rule has content from repealed §745.8843(d) in Title 40, Chapter 745, Subchapter M, with updates in terminology related to CCR now being at HHSC.
Proposed new §745.8845 describes how a due process hearing is conducted. The proposed rule has content from repealed §745.8845 in Title 40, Chapter 745, Subchapter M.
Proposed new §745.8847 describes what information the parties can discuss in a due process hearing. The proposed rule has content from repealed §745.8847 in Title 40, Chapter 745, Subchapter M, with updates to improve readability and understanding.
Proposed new §745.8849 describes when an administrative law judge may combine due process hearings. The proposed rule has content from repealed §745.8851 in Title 40, Chapter 745, Subchapter M, with updates to improve readability and understanding.
Proposed new §745.8851 describes the process that either party may use to appeal a final decision that the State Office of Administrative Hearings issues after a due process hearing.
Proposed new §745.8853 describes what actions HHSC must take after the final decision in a due process hearing, including the results of a subsequent appeal. The proposed rule has content from repealed §745.8849 in Title 40, Chapter 745, Subchapter M, with updates and a new chart to improve readability and understanding.
Proposed new §745.8855 describes how a person may waive the right to a due process hearing and the effective date of the waiver. The proposed rule and chart have content from repealed §745.8855 in Title 40, Chapter 745, Subchapter M, with updates to improve readability and understanding.

New 26 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881, regarding outcomes of administrative reviews and types of relief available.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
26 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed new §745.8871 describes the circumstances in which a request for an administrative review will suspend the start date of a probation. The proposed rule has content from repealed §745.8871 in Title 40, Chapter 745, Subchapter M, with substantive changes to (1) delete the use of “evaluation”; (2) delete the previous wording that an administrative review could be requested for one or more of the conditions imposed by the probation because the request for an administrative review must be for the entire probation; and (3) add that a current probation will continue if an operation requests an administrative review for an added condition to a corrective action plan for a probation that the operation is currently on.
Proposed new §745.8873 states that the notice requirements are not postponed pending the outcome of an administrative review and due process hearing for the suspension of, revocation of, or refusal to renew a permit. The proposed rule has content from repealed §745.8873 in Title 40, Chapter 745, Subchapter M. In addition, “posting requirements” has been updated to state “notice requirements” because the already updated §745.8656 requires an operation to notify the parents of a suspension of, revocation of, or refusal to renew a permit in addition to the posting requirement.
Proposed new §745.8875 describes when an operation may operate while appealing an adverse action, including an administrative review and due process hearing. The proposed rule has content from repealed §745.8875 in Title 40, Chapter 745, Subchapter M, with substantive changes to (1) clarify that an operation cannot continue to operate pending the outcome of an administrative review and due process hearing for a suspension, which is consistent with S.B. 764, 87th Legislature, Regular Session, 2021, and has already been operationalized by CCR; (2) add the adverse action of refusal to renew a permit as an adverse action that is impacted by this rule (the operation may continue to operate pending the outcome of the administrative review and due process hearing for the refusal to renew a permit unless CCR determines the operation poses an immediate threat or danger to the health or safety of children); and (3) clarify that an operation may continue to operate without the adverse amendment pending the outcome of an administrative review and due process hearing for an adverse amendment.
Proposed new §745.8877 states that an operation may seek injunctive relief from a district court if the operation disagrees with CCR’s decision that the operation poses an immediate threat or danger to the health or safety of children. The proposed rule has content from repealed §745.8877 in Title 40, Chapter 745, Subchapter M, and a new cross reference to §745.8875(2) to clarify the proposed rule relates specifically to the immediate threat discussion in §745.8875(2). In addition, the proposed rule deletes the implication that an operation may request an administrative review and due process hearing when CCR determines the operation poses and immediate threat or danger to the health or safety of children. Instead, a new cross reference to HRC §42.072(e) requires an operation to seek injunctive relief from a district court if the operation disagrees with CCR’s immediate threat determination.
Proposed new §745.8879 describes when an operation may enroll new children pending the outcome of an administrative review and due process hearing for a revocation of or refusal to renew a permit. The proposed rule has content from repealed §745.8879 in Title 40, Chapter 745, Subchapter M, with (1) the addition of the adverse action of refusal to renew a permit as an adverse action that is impacted by this rule; and (2) clarifying that an operation may also enroll new children if a district court grants the operation injunctive relief to continue to operate pending the outcome of an administrative review and due process hearing.
Proposed new §745.8881 describes the kinds of investigations and inspections that will be conducted pending an administrative review and due process hearing. The proposed rule has content from repealed §745.8881 in Title 40, Chapter 745, Subchapter M, with the addition of investigations, including DFPS investigations.

Adopted Rules Re:

Amending 26 TAC §§748.103, 748.124 – 748.126, concerning the requirements for General Residential Operations’s suicide prevention, intervention, and postvention policy.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER C. ORGANIZATION AND ADMINISTRATION
26 TAC §§748.103, 748.124 – 748.126

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§748.103, 748.1205, 748.1219, 748.1271, and 748.1337; new §§748.124 – 748.126; and the repeal of §748.125.

New §748.125 is adopted with changes to the proposed text as published in the May 13, 2022, issue of the Texas Register (47 TexReg 2829). This rule will be republished.

Amendments to §§748.103, 748.1205, 748.1219, 748.1271, and 748.1337; new §748.124 and §748.126; and the repeal of §748.125 are adopted without changes to the proposed text as published in the May 13, 2022, issue of the Texas Register (47 TexReg 2829). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments, new sections, and repeal are necessary to comply with SECTION 20 of Senate Bill 1896, 87th Legislature, Regular Session, 2021, that added §42.0433 to Texas Human Resources Code (HRC). New HRC §42.0433 requires HHSC to adopt a model suicide prevention, intervention, and postvention policy for use by residential child-care facilities. This section also requires each residential child-care facility to adopt either the model policy or another suicide prevention, intervention, and postvention policy that has been approved by the Executive Commissioner of HHSC. The adopted rules implement these changes for general residential operations (GROs).

Amending 26 TAC §748.1205, §748.1219, requiring documentation at the time of admission of a child’s suicide risk if required and the results of a suicide screening if required.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER I. ADMISSION, SERVICE PLANNING, AND DISCHARGE
26 TAC §748.1205, §748.1219

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§748.103, 748.1205, 748.1219, 748.1271, and 748.1337; new §§748.124 – 748.126; and the repeal of §748.125.

New §748.125 is adopted with changes to the proposed text as published in the May 13, 2022, issue of the Texas Register (47 TexReg 2829). This rule will be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §748.1271, to outline when documentation of a child’s suicide risk is necessary.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER I. ADMISSION, SERVICE PLANNING, AND DISCHARGE
26 TAC §748.1271

OVERVIEW

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§748.103, 748.1205, 748.1219, 748.1271, and 748.1337; new §§748.124 – 748.126; and the repeal of §748.125.

New §748.125 is adopted with changes to the proposed text as published in the May 13, 2022, issue of the Texas Register (47 TexReg 2829). This rule will be republished.

BACKGROUND AND JUSTIFICATION

Amending 26 TAC §748.1337, to update and broaden requirements for plans to minimize the risk of harm and a safety contract between a child and staff for children with a suicide risk.

CHAPTER 748. MINIMUM STANDARDS FOR GENERAL RESIDENTIAL OPERATIONS
SUBCHAPTER I. ADMISSION, SERVICE PLANNING, AND DISCHARGE
26 TAC §748.1337

The Texas Health and Human Services Commission (HHSC) adopts amendments to §§748.103, 748.1205, 748.1219, 748.1271, and 748.1337; new §§748.124 – 748.126; and the repeal of §748.125.

New §748.125 is adopted with changes to the proposed text as published in the May 13, 2022, issue of the Texas Register (47 TexReg 2829). This rule will be republished.

BACKGROUND AND JUSTIFICATION

ropractic Examiners

Proposed Rules Re:

Amending 22 TAC §72.3, updating a change to the organization of the accredited entities for chiropractic schools recognized by the Board of Licensing in terms of qualifications.

CHAPTER 72. BOARD FEES, LICENSE APPLICATIONS, AND RENEWALS
22 TAC §72.3

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §72.3 (Qualifications). The organization of the accrediting entities for chiropractic schools recognized by the Board for licensing purposes has changed; the amendment updates that change.

BACKGROUND AND JUSTIFICATION

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the amendment as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed amendment will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that, for each year of the first five years the amended rule will be in effect, the public benefit is to update the accrediting entities for chiropractic schools recognized by the Board.

Amending 22 TAC §72.5, updating the approved schools and colleges to reflect the changes made by the organization of the accrediting entities for chiropractic schools recognized by the Board for Licensing.

CHAPTER 72. BOARD FEES, LICENSE APPLICATIONS, AND RENEWALS
22 TAC §72.5

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes an amendment to 22 TAC §72.5 (Approved Schools and Colleges). The organization of the accrediting entities for chiropractic schools recognized by the Board for licensing purposes has changed; the amendment updates that change.

BACKGROUND AND JUSTIFICATION

New 22 TAC §75.10, concerning requirements for chiropractors providing telehealth services.

CHAPTER 75. BUSINESS PRACTICES
22 TAC §75.10

OVERVIEW

The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §75.10 (Chiropractic Telehealth Requirements). This rulemaking puts the current statutory requirements for chiropractors providing telehealth services found in Texas Occupations Code Chapter 111 (Telemedicine, Teledentistry, and Telehealth). The proposed rule also adds a requirement that licensed chiropractors also provide patients with access to copies of their Board-issued license and the Board-required mandatory notice to the public. A chiropractor is already required to provide access to those two documents (found in 22 TAC §75.6 and §75.7) to patients during live face-to-face visits; the proposed rule merely extends that requirement to telehealth visits.

BACKGROUND AND JUSTIFICATION

The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed rule is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the repeal as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis are not required because the proposed rule will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).

Mr. Fortner has determined that for each year of the first five years the proposed rule will be in effect the public benefit is to make the documents a chiropractor must provide to patients the same for both face-to-face visits and telehealth visits.

Texas Medical Board

Proposed Rules Re:

Repealing 22 TAC §§195.1 – 195.4, concerning pain management clinics.

CHAPTER 195. PAIN MANAGEMENT CLINICS
22 TAC §§195.1 – 195.4

OVERVIEW

The Texas Medical Board (Board) proposes the repeal of §§195.1 – 195.4, and new §§195.1 – 195.5, concerning Pain Management Clinics.

BACKGROUND AND JUSTIFICATION

The current sections are proposed for repeal because new §§195.1 – 195.5 are proposed in this issue of the Texas Register. The Board has determined that due to the extensive reorganization of Chapter 195, repeal of the entire chapter and replacement with new sections is more efficient than proposing multiple amendments to make the required changes.

The proposed new sections represent the input of the Opioid Workgroup, composed of pain patients, physicians, psychologists, and organizations such as the Texas Pain Society, Texas Medical Association, Texas Radiological Society, and Texas Orthopedic Association. Stakeholder meetings were held on October 13, 2021, and August 1, 2022.

The Board’s goals in proposing the new sections are to increase patient safety and access to legitimate chronic pain treatment and multi-modal approaches, in addition to the use of appropriate prescriptions for pain medication. Other Board goals are to reduce administrative burdens for physicians who provide treatment for chronic pain and to maintain appropriate regulatory measures designed to reduce the risk of opioid misuse, diversion, or overdose, protecting the public health and welfare.

New 22 TAC §§195.1 – 195.5, concerning increased patient safety and access to legitimate chronic pain treatment.

CHAPTER 195. PAIN MANAGEMENT CLINICS
22 TAC §§195.1 – 195.5

OVERVIEW

The Texas Medical Board (Board) proposes the repeal of §§195.1 – 195.4, and new §§195.1 – 195.5, concerning Pain Management Clinics.

BACKGROUND AND JUSTIFICATION

Texas State Board of Pharmacy

Proposed Rules Re:

Amending 22 TAC §291.8, to clarify the situations in which a pharmacist at all classes of pharmacies may re-dispense a prescription drug.

CHAPTER 291. PHARMACIES
SUBCHAPTER A. ALL CLASSES OF PHARMACIES
22 TAC §291.8

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.8, concerning Return of Prescription Drugs. The amendments, if adopted, clarify that a pharmacist may re-dispense a prescription drug as authorized by exceptions in Chapters 431 and 442 of the Health and Safety Code and correct a grammatical error.

BACKGROUND AND JUSTIFICATION

Timothy L. Tucker, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Tucker has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be clear and grammatically correct regulations. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Amending 22 TAC §291.33, regarding situations in which a pharmacist at a community pharmacy may re-dispense a prescription drug.

CHAPTER 291. PHARMACIES
SUBCHAPTER B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.33

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.33, concerning Operational Standards. The amendments, if adopted, clarify that a pharmacist may re-dispense a prescription drug as authorized by exceptions in Chapters 431 and 442 of the Health and Safety Code and correct grammatical errors.

BACKGROUND AND JUSTIFICATION

Amending 22 TAC §291.73 to correct a citation reference and eliminate a grammatical error.

CHAPTER 291. PHARMACIES
SUBCHAPTER D. INSTITUTIONAL PHARMACY (CLASS C)
22 TAC §291.73

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §291.73, concerning Personnel. The amendments, if adopted, correct a citation reference and a grammatical error.

BACKGROUND AND JUSTIFICATION

Timothy L. Tucker, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Tucker has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be correct and clear regulatory language. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Amending 22 TAC §295.8 to update the required human trafficking prevention course for renewal of a license to practice pharmacy.

CHAPTER 295. PHARMACISTS
22 TAC §295.8

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §295.8, concerning Continuing Education Requirements. The amendments, if adopted, clarify that the requirement to complete a human trafficking prevention course for renewal of a license to practice pharmacy does not expire on September 1, 2022.

BACKGROUND AND JUSTIFICATION

Timothy L. Tucker, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Tucker has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to provide consistency between state law and Board rules regarding the requirements for renewal of a license to practice pharmacy. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Amending 22 TAC §297.8, concerning the requirement of pharmacy technicians to complete a human trafficking prevention course.

CHAPTER 297. PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES
22 TAC §297.8

OVERVIEW

The Texas State Board of Pharmacy proposes amendments to §297.8, concerning Continuing Education Requirements. The amendments, if adopted, clarify that the requirement to complete a human trafficking prevention course for renewal of a registration as a pharmacy technician does not expire on September 1, 2022.

BACKGROUND AND JUSTIFICATION

Timothy L. Tucker, Pharm.D., Executive Director/Secretary, has determined that, for the first five-year period the rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Dr. Tucker has determined that, for each year of the first five-year period the rule will be in effect, the public benefit anticipated as a result of enforcing the amendments will be to provide consistency between state law and Board rules regarding the requirements for renewal of a registration as a pharmacy technician. There is no anticipated adverse economic impact on large, small or micro-businesses (pharmacies), rural communities, or local or state employment. Therefore, an economic impact statement and regulatory flexibility analysis are not required.

Texas Board of Physical Therapy Examiners

Proposed Rules Re:

Amending 22 TAC §337.2, regarding changing the board’s address on consumer informational signs.

CHAPTER 337. DISPLAY OF LICENSE
22 TAC §337.2

The Texas Board of Physical Therapy Examiners proposes amending §337.2. Consumer Information Sign relating to the board’s contact information and the availability of a consumer information sign on the board’s website.

The amendment is proposed as the board’s change of address necessitates amending the current language.

Texas Board of Occupational Therapy Examiners

Proposed Rules Re:

Amending 40 TAC §374.3 to remove the certified mail and notarized signatures requirement for agreed orders.

CHAPTER 374. DISCIPLINARY ACTIONS/DETRIMENTAL PRACTICE/COMPLAINT PROCESS/CODE OF ETHICS/LICENSURE OF PERSONS WITH CRIMINAL CONVICTIONS
40 TAC §374.3

OVERVIEW

The Texas Board of Occupational Therapy Examiners proposes amendments to the 40 Texas Administrative Code §374.3, Complaint Process. The amendments are proposed to remove certified mail and notarized signatures requirements with regard to agreed orders. The changes would allow orders and notices to be sent by all the methods listed in Texas Government Code section 2001.054(c), and would not limit delivery to certified mail, return receipt requested.

BACKGROUND AND JUSTIFICATION

Changes to the section include the removal of requirements concerning the Board’s use of certified mail when sending agreed orders to the respondent to a complaint. The amendments will also remove the requirement that respondents have their signatures notarized on agreed orders.

These changes will streamline both board processes regarding mailing and requirements for respondents concerning agreed orders. The Board anticipates that these changes will increase the efficiency of investigative mailing processes and reduce the possible complications respondents to a complaint may encounter when responding to agreed orders.

The amendments also include a revision to correct a reference in the section to Texas Government Code section 2001.054(c). The change is proposed to increase the accuracy of the board rules.

Repealing 40 TAC §§745.8801, 745.8803, 745.8805 – 745.8807, 745.8809, 745.8813, 745.8815, 745.8817, concerning the process for administrative reviews.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
40 TAC §§745.8801, 745.8803, 745.8805 – 745.8807, 745.8809, 745.8813, 745.8815, 745.8817

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Title 40, Texas Administrative Code, Chapter 745, the repeal of Subchapter M, Administrative Reviews and Due Process Hearings, which consists of §§745.8801, 745.8803, 745.8805, 745.8806, 745.8807, 745.8809, 745.8813, 745.8815, 745.8817, 745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, 745.8871, 745.8873, 745.8875, 745.8877, 745.8879, and 745.8881.

BACKGROUND AND PURPOSE

DFPS adopted rules applicable to DFPS responsibilities in Title 40, Chapter 707. In addition, the proposal of Title 26, Chapter 745, new Subchapter M, Administrative Reviews and Due Process Hearings, containing new rules applicable to CCR responsibilities, are published elsewhere in this issue of the Texas Register. Accordingly, CCR is proposing the repeal of Title 40, Chapter 745, Subchapter M, including the repeal of the corresponding rules.

Repealing 40 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855, regarding due process hearing procedures.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
40 TAC §§745.8831, 745.8833, 745.8835, 745.8837, 745.8839, 745.8841, 745.8843, 745.8845, 745.8847, 745.8849, 745.8851, 745.8853, 745.8855

OVERVIEW

BACKGROUND AND PURPOSE

Repealing 40 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881, concerning outcomes of administrative reviews and due process hearings.

CHAPTER 745. LICENSING
SUBCHAPTER M. ADMINISTRATIVE REVIEWS AND DUE PROCESS HEARINGS
40 TAC §§745.8871, 745.8873, 745.8875, 745.8877, 745.8879, 745.8881

OVERVIEW

BACKGROUND AND PURPOSE

Department of State Health Services

Adopted Rules Re:

Amending 25 TAC §157.11, to require that each applicable EMS medical director approve protocols that give preference to the emergency transfer of a dialysis patient from the patient’s location directly to an outpatient end-stage renal disease facility during a declared disaster.

CHAPTER 157. EMERGENCY MEDICAL CARE
SUBCHAPTER B. EMERGENCY MEDICAL SERVICES PROVIDER LICENSES
25 TAC §157.11

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts an amendment to §157.11, concerning the Requirements for an EMS Provider License. The amendment to §157.11 is adopted without changes to the proposed text as published in the June 10, 2022, issue of the Texas Register (47 TexReg 3404), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to comply with Senate Bill (S.B.) 1876, 87th Legislature, Regular Session, 2021, related to the emergency transfer of a dialysis patient during a declared disaster. S.B. 1876 amended Texas Health and Safety Code §773.112 requiring each applicable emergency medical services (EMS) provider’s medical director to approve a protocol to give preference to the emergency transfer of a dialysis patient from the patient’s location directly to an outpatient end-stage renal disease facility during a declared disaster.